Understanding Refugees: Key Terms, Standards, and Legal Rights
MAJ Robert Insani, U.S. Army
Shortly after the defeat of the Third Reich, General Dwight Eisenhower's attention abruptly shifted from combat operations to the myriad issues associated with the Allied occupation of Germany. On 29 September 1945, President Harry Truman wrote to General Eisenhower to ensure that one of those issues - the plight of dislocated civilians in the U.S. Zone - would receive his personal attention.1 President Truman's correspondence clearly communicated his dissatisfaction with the manner in which dislocated civilians were currently being treated, along with his view that the manner in which the United States treated dislocated civilians reflected the United States' values more truly than its stated policies.2 President Truman expected his commander, General Eisenhower, to take action to improve conditions for dislocated civilians and to advise him of the action taken at the earliest possible opportunity.3
Dislocated civilians are particularly vulnerable populations and, as a result, issues related to dislocated civilians in military operations are likely to receive attention at the highest levels of government in the future, just as they did following World War II. Such issues are also likely to capture the attention of the media and the international community. Given that modern conflicts continue to produce tremendous numbers of dislocated civilians, around 43.7 million people as of 2010,4 the phenomenon of dislocated civilians in military operations should be anticipated and included in the planning process.
Types of Displacement
Multiple types of dislocated civilian populations may be encountered in an operational environment, including refugees, internally displaced persons (IDPs), migrants, and stateless persons. Although these populations may share similar characteristics, they are not the same. For example, refugees and IDPs may both suffer from fear, violence, lack of resources, and hardship, but they are legally different populations with different legal rights and protections. As such, each dislocated civilian population within the operational environment must be identified with as much precision as possible. Once each population is properly identified, commanders can better understand those populations and the legal rights to which they are entitled.
This article will address one dislocated civilian population: refugees. With numbers totaling 15.4 million worldwide, refugees comprise a significant portion of the world's dislocated population.5 However, the term "refugee" has been consistently misused, leading to a lack of precision and a tendency to treat all dislocated civilians as a single population. Given that each population of dislocated civilians may be entitled to rights that are determined by a precise understanding of their status, this lack of precision is unacceptable. In order to assist commanders and staffs as they plan for operations involving refugees, this article will identify the key terms, legal standards, and basic rights that are essential to understanding refugee populations.6
"Dislocated civilian" is an overarching term used within the Department of Defense (DOD) to refer to people who have left their homes for various reasons, and includes refugees, IDPs, migrants, evacuees, and stateless persons.7 Dislocated civilians may also be referred to as "displaced persons," especially by civilian agencies and nongovernmental organizations. Although these overarching terms are somewhat useful for general conversation, they are not sufficiently precise for planning. These overarching terms do not help commanders understand the nature of dislocated populations in the operational environment, nor do they help identify the legal rights and protections to which a particular population, such as refugees, may be entitled. Accordingly, the following key terms and their definitions should be used in planning operations involving dislocated civilians:
In addition to terms that define the different populations of dislocated civilians, the following related terms are also essential to planning operations involving refugees:
The nation from which an individual or group has requested refugee status determines whether that individual or group meets the "refugee" definition. These determinations are made according to international law as implemented by the host nation's law.20 In making these determinations, nations will often receive assistance from the United Nations High Commissioner for Refugees (UNHCR). It is important to note that just because an individual or group is determined to meet the definition of refugee does not mean that they will necessarily be allowed to remain in the country. The host nation may elect to allow refugees to remain within its borders under refugee or asylum status or make alternative arrangements for protection. However, as discussed in the definition of refoulement above, refugees cannot be forced to return to a country where their life or freedom would be threatened because of their race, religion, nationality, membership in a particular social group, or political opinion.21
The Legal Standards
The international law applicable to refugees is derived from formal treaties, conventions, and protocols ("treaty law"), and from practices that nations consistently follow as a matter of a recognized legal duty ("customary international law"). Although there are multiple legal standards applicable to refugees,22 the following are the primary legal standards:
Many if not most of the legal issues related to refugees will require reference, not only to the legal standards identified above, but also to the national laws of the host nation where the refugee is physically located. Cases involving asylum requests to a third country will require reference to yet another set of laws, potentially adding another layer of legal complexity to any particular case. As a result, some legal issues involving refugees may be difficult to resolve, in part due to the multiple legal standards that may be applicable in any particular situation. However, the majority of the issues should be resolved through reference to the identified legal standards and, where necessary, host nation law.
Legal Rights of Refugees
International law, primarily in the 1951 Refugee Convention,28 establishes the basic rights of refugees, which are then implemented by the national laws of the signatory nations. The 1951 Refugee Convention's framework is intended to provide rights and protections to refugees that expand "[a]s the refugee's relationship to the [host nation] is solidified [ ]" over time.29 As such, refugees who have been granted asylum ordinarily enjoy greater rights than those enjoyed by newly arrived individuals (asylum-seekers) who have not yet been determined to be refugees.30
As identified above, the framework for determining the rights to which a refugee is entitled is based upon the relationship between the refugee and the host nation.31 The refugee-host nation relationship may be characterized, in increasing significance, as "subject to state jurisdiction," physically present, lawfully present, lawfully staying, or durable residence.32 The following definitions further explain the nature of these refugee-host nation relationships.
Some rights, such as freedom of religion and equal access without discrimination based on race, religion, or country of origin, apply to all refugees.39 Protections from refoulement and expulsion from the host nation (except in certain defined circumstances) are also extended to all refugees, irrespective of their relationship with the host nation.40 Any additional rights are afforded to refugees based on the refugee's relationship with the host nation and in accordance with the "standard of treatment"41 required by the 1951 Refugee Convention. The standard of treatment determines whether the refugee rights under host nation law will be: (1) the same as those afforded to nationals (citizens) of the host nation; (2) the same as those afforded to "most favored" foreign nationals in the host nation; or (3) at least as favorable as those afforded to aliens by the host nation.42 Table 1-1 indicates the rights to which a refugee is entitled based on the relationship with the host nation and also reflects the standard of treatment the refugee will receive with respect to those rights.
Although the refugee-host nation relationship test is useful for determining the rights of particular refugees, it may be of less use in determining the rights of large refugee populations comprised of individuals whose relationships will likely range from physically present to durable residence. However, by ensuring that refugees are at least provided with the rights associated with physical presence and by working with the host nation to develop systems to identify and assist refugees entitled to greater rights, commanders can help ensure that the basic obligations of the 1951 Refugee Convention are being observed.
Refugees are a vulnerable population that generates attention and concern at both the national and international levels. Given the large numbers of refugees throughout the world, commanders must anticipate and plan for refugee presence in the operational environment. Although refugee-related issues are often complex, they are manageable with awareness and understanding of the criteria for refugee status, the legal standards applicable to refugees, and the various legal rights afforded to refugees under international law. These tools will improve the commander's overall understanding of the operational environment by allowing precise identification of refugee populations and the legal rights of those populations. As a result, commanders will be better able to anticipate and address the needs of these vulnerable populations within the operational environment as an important and highly visible part of their overall mission.
1. Letter from President Truman to General Eisenhower regarding the treatment of displaced Jews, http://www.jewishvirtuallibrary.org/jsource/Holocaust/truman_on_harrison.html (accessed April 14, 2012).
4. UNHCR, "Global Trends 2010," http://www.unhcr.org/4dfa11499.html (accessed April 14, 2012). If the world's displaced population constituted a nation of their own, they would be the 30th largest nation in the world, just behind Ukraine and just ahead of Tanzania. For perspective, the population of such a nation would exceed the populations of nations such as Argentina, Poland, Canada, Iraq, and Saudi Arabia and be more than double the populations of nations such as Taiwan, Syria, and Australia. See Central Intelligence Agency, The World Factbook, https://www.cia.gov/library/publications/the-worldfactbook/rankorder/2119 rank.html (accessed April 14, 2012). Of course, the displaced population is not contained within a single national border but is instead dispersed throughout the world, ordinarily in places in close proximity to ongoing conflict. See "Global Trends 2010," 14.
5. "Global Trends 2010."
6. This article does not address the issues or process for obtaining refugee or asylum status within the United States under the Immigration and Nationality Act. The terms in this article are used and defined as they are generally understood in international law. The same terms may have different meanings within the context of the Immigration and Nationality Act.
7. DOD, Joint Publication (JP) 3-29, Foreign Humanitarian Assistance (Washington: Government Printing Office, March 17, 2009), I-6. JP 3-29 states that "[a] ‘dislocated civilian' is a broad term primarily used by DOD that includes a displaced person, an evacuee, an internally displaced person (IDP), a migrant, a refugee, or a stateless person. These persons may be victims of conflict, natural, or man-made disaster."
8. Convention Relating to the Status of Refugees, July 28, 1951 [hereinafter 1951 Refugee Convention]. Pursuant to the 1951 Refugee Convention, the term "refugee" applies to: any person who, as a result of events occurring before 1 January 1951 and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion; is outside the country of his nationality; and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
The words "religion," "nationality," "social group," and "political opinion" used in the definition of refugee require further definition and explanation that is beyond the scope of this introductory article. These terms are further defined in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees published by the UNHCR. The handbook is useful in interpreting the 1951 Refugee Convention and the 1967 Protocol and is available at http://www.unhcr.org/refworld/docid/4f33c8d92.html (accessed April 26, 2012). The UNHCR also publishes Guidelines on International Protection, which provides legal interpretative guidance on refugee status matters. These guidelines are published periodically and are not available at a single web address, but can be located by searching the UNHCR website at http://www.refworld.org.
9. UNHCR, "Statistical Online Population Database: Sources, Methods and Data Considerations," http://www.unhcr.org/45c06c662.html (accessed April 17, 2012).
10. United Nations Office for the Coordination of Humanitarian Affairs, "United Nations Guiding Principles on Internal Displacement," September 2004, http://www.brookings.edu/projects/idp/gp_page.aspx (accessed April 28, 2012). The guiding principles are not an international treaty, and the document itself is not legally binding international law. However, the guiding principles do "reflect and are consistent with international human rights law and international humanitarian law." Ibid. As such, the "United Nations Guiding Principles on Internal Displacement" has a definition of IDP and guidance on IDP rights, which is a useful starting point for determining rights and other issues related to IDPs.
11. JP 3-29, GL-9.
14. 1951 Refugee Convention, Art. 33.
16. See United Nations General Assembly Resolution 428 (v) December 1950, Statute of the Office of the United Nations High Commissioner for Refugees; UNHCR, Handbook Voluntary Repatriation: International Protection, January 1996, http://www.unhcr.org/refworld/docid/3ae6b3510. html (accessed April 20, 2012).
17. 1951 Refugee Convention, Art. 33.
18. See generally "Aliens and Nationality: Immigration and Nationality."¬†Title 8 U.S. Code, Sec. 1158.¬†2012 ed.
19. Joan Fitzpatrick, "Temporary Protection of Refugees: Elements of a Formalized Regime," The American Journal of International Law, Vol. 94, No. 2 (2000): 270-306.
20. UNHCR, "The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol," September 2011, http://www.unhcr.org/4ec262df9.html (accessed April 20, 2012).
21. 1951 Refugee Convention, Art. 33.
22. As indicated, this list is not all-inclusive. Refugees and IDPs are also addressed in Additional Protocol I, Additional Protocol II, the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness, the 1967 United Nations Declaration on Territorial Asylum, and the Universal Declaration of Human Rights. Only those agreements that have been signed by the United States and ratified by the Senate are binding on the United States, unless the agreement reflects customary international law as recognized by the United States. Unit legal advisers can provide additional information on the impact of these legal authorities on operations involving refugees and IDPs.
23. 1951 Refugee Convention.
24. Protocol Relating to the Status of Refugees, Oct. 4, 1967 [hereinafter 1967 Refugee Protocol].
25. "Aliens and Nationality: Immigration and Nationality."¬†Title 8 U.S. Code, Sec. 1101 et seq.¬†2012 ed.
26. INS v. Cardoza-Fonseca, 480 U.S. 421,436-37 (1987) (citing H.R. Rep. No. 96-608 at 9 ).
27. Geneva Convention Relative to the Protection of Civilian Persons in Time of War arts. 44, 70, Aug. 12. 1949.
28. The national laws of host nations are also important because they ensure that the minimum rights afforded to refugees by international law are incorporated into the legal systems of those nations. National laws may also grant refugees additional rights beyond those required by international law.
29. James C. Hathaway, The Rights of Refugees Under International Law, (Cambridge: Cambridge University Press, 2005), 156.
33. Ibid., 160-161.
34. See Rasul v. Bush, 542 U.S. 466 (2004).
35. Hathaway, The Rights of Refugees Under International Law, 171.
36. Ibid., 174.
37. Ibid., 189.
38. Ibid., 190.
39. 1951 Refugee Convention.
40. 1951 Refugee Convention.
41. Hathaway, The Rights of Refugees Under International Law, 193-194, 233.
42. Ibid. The difference between "foreign national" and "alien" is subtle. For a complete discussion of the foreign national standard of treatment, see Ibid., 230-234.